Order date – 20 January 2023

Parties: M/s. Radiant Enterprises Private Limited Vs Joint Commissioner, CGST & CX (Appeal I)

Facts – 

• The Appellant’s, Radiant Enterprises Private Limited and Anr, refund application was rejected by the authorities stating tax has been paid/deposited into the Government exchequer by M/s. Eveready and not the appellants and therefore, they are not entitled to claim it.
• Aggrieved by the same, the appellants filed a statutory appeal before the appellate authority stating that the person, who has borne the incidence of tax can file a refund claimed in accordance with the provisions of section 54 of the CGST Act, hence allowed by the appellate authority.
• The appellate authority states that there are two issues involved, the first of which is whether the recipient of services or goods can apply for refund claim for excess payment of tax or not. The appellate authority also framed another issue as to whether the building purchased by the appellants from their purchaser M/s. Eveready Industries Limited is taxable under the GST or not.
• The first issue was held in favour, however, the second issue, which was suo motu framed by theappellate authority has been decided against the appellants. 
• Hence this writ.

Issue –

• Whether Appellant is eligible for refund ?

Order –

• The Court observed that the second issue suo motu framed by the appellate authority could not have been framed and there is no jurisdiction for the appellate authority to frame such an issue. 
• CGST Act does not provide for any such provision for filing a cross appeal by the revenue in a statutory appeal filed before the appellate authority under section 107 of the CGST Act. Thus, the second issue has to be necessarily set aside.
• For the above reasons, the appeal is allowed.